11th Circuit Upholds Law Banning Gun Inquiries

(CN) – A Florida law prohibiting doctors from asking their patients about gun ownership is not unconstitutionally vague and does not violate physicians free speech rights, a divided 11th Circuit ruled. The decision, announced July 28, marks the second time the appeals court has upheld the law, which was challenged by more than a dozen doctors and twice as many medical associations. Writing for panel majority U.S. Circuit Judge Gerald Tjoflat said the court’s latest decision is a reconsideration of its July 2014 ruling on the case, and should be read as a substitute for that earlier opinion. The Florida Firearm Owners Privacy Act includes a series of restrictions on doctors and other healthcare providers related to asking about patients’ gun ownership and recording their answers. Proponents of the law contend it is intended to protect patients’ privacy by restricting irrelevant inquiry and record-keeping by physicians on the sensitive issue of firearm ownership. On June 6, 2011, four days after it was signed into law by Fla. Gov. Rick Scott, the plaintiffs sued for injunctive relief, claiming the Act imposed an unconstitutional, content-based restriction on speech, was overbroad, and was unconstitutionally vague. A year later, a federal judge in Miami permanently enjoined enforcement of the inquiry, record-keeping, discrimination, and harassment provisions of the Act, holding that all four violated the First Amendment, and that the inquiry, record-keeping, and harassment provisions of the Act were void for vagueness. But the appeals court last July and again Tuesday overturned the injunction. “The purpose of the act, as we read it, is not to protect patient privacy by shielding patients from any and all discussion about firearms with their physicians; the act merely requires physicians to refrain from broaching a concededly sensitive topic when they lack any good-faith belief that such information is relevant to the medical care or safety of their patients or others,” Tjoflat wrote. “given this understanding of the Act, and in light of the longstanding authority of States to define the boundaries of good medical practice, we hold that the Act is, on its face, a permissible restriction of physician speech,” he continued. “Plaintiffs remain free-as they have always been-to assert their First Amendment rights as an affirmative defense in any actions brought against them. “But we will not, by striking down the Act, effectively hand Plaintiffs a declaration that such a defense will be successful. Accordingly, we reverse the District Court’s grant of summary judgment in favor of Plaintiffs, and vacate the injunction against enforcement of the Act.” Tjoflat was joined in his opinion by U.S. District Judge L. Scott Coogler, who was sitting by designation. But in a lengthy dissent, U.S. Circuit Judge Charles Wilson said his colleagues had it exactly wrong. “Simply put, the act is a gag order that prevents doctors from even asking the first question in a conversation about firearms,” Wilson wrote. “The act prohibits or significantly chills doctors from expressing their views and providing information to patients about one topic and one topic only, firearms.” He continued: “This law is not designed to improve healthcare because, as far as the medical community is concerned, this law will make healthcare worse. This law is not designed to protect privacy because privacy of the information at issue is already secured. This law is not designed to protect Second Amendment rights because doctors have no authority-and have not used their private positions of power-to compel firearm owners to relinquish their weapons. “This law is instead designed to stop a perceived political agenda, and it is difficult to conceive of any law designed for that purpose that could withstand First Amendment scrutiny,” Wilson wrote. “Even if — perhaps particularly if — doctors were actually waging a political campaign rather than merely being perceived as doing so, the First Amendment would protect them from laws like the Act. What is more troubling is that there is no evidence that doctors are actually pursuing a political agenda with patients. “Doctors are not prohibiting patients from exercising the right to bear arms; they are, perhaps, convincing patients not to do so-or to do so more safely. This is precisely the type of speech the First Amendment is designed to protect,” he concluded.